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Rule of Law
THE RULE OF LAW
The rule of law as stated by Aristotle the rule of law is preferable to the rule
of any individual. This captures the idea that the rulers as well as the ruled
should be subject to law. The traditional approach to the rule of law is found
in Diceys work.
The Judiciary and the Legal Profession this requires the independence
of the judiciary and an organized and autonomous legal profession.
The Criminal process this involves a right to a fair trial, certainty in
the criminal law and other rules of fairness including the absence of
cruel punishments.
A citizen who is wronged should have a remedy against the state.
The use of the term rule of law in the Constitution is not conclusive
evidence that a jurisdiction is governed by the rule of law. What is
important is whether the principles enshrined in the doctrine of the
rule of law are actually present in that constitution.
Separation of powers
DPP v. Mollison
Whatever overlap there may be under constitutions on the Westminster
model between the exercise of executive and legislative powers, the
separation between the exercise of judicial powers on the one hand and
legislative and executive powers on the other is total or effectively so. Such
separation, based on the rule of law, was recently described by Lord Steyn as
a characteristic feature of democracies: R (Anderson) v. Secretary of State
for the Home Department [2002] 3 WLR 1800. The appellant prisoner was
serving a mandatory life sentence for murder. Both the trial judge and the
Lord Chief Justice had recommended that he serve a minimum term of 15
years to meet the requirements of retribution and general deterrence, but
the Secretary of State set the tariff at 20 years. The prisoner could not be
considered by the Parole Board for release on life licence until he had
completed the tariff. The prisoner, who was nearing the end of the judicially
recommended tariff period, applied for judicial review of the Secretary of
States decision to increase the tariff.
The Divisional Court dismissed the application, and the Court of Appeal
affirmed its decision. On his subsequent appeal to the House of Lords, the
prisoner contended that the Secretary of State should not fix the tariff for a
convicted murderer since that power was incompatible with a persons right,
under art 6(1)b of the European Convention for the Protection of Human
Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human
Rights Act 1998), to have his sentence imposed by an independent and
impartial tribunal. In response, the Secretary of State contended that, in
fixing the tariff for a convicted murderer, he was administering a sentence
already imposed, not imposing a sentence. In the event of the prisoners
submission being preferred, a further issue arose as to the relief to which he
was entitled.
Lewis v. AG of Jamaica
It was said that you couldnt have protection of the law unless you have due
process of the law. The two terms are synonymous. The due protection of
the law guaranteed in s.13 of the Jamaican constitution, and so the people
are endowed with constitutional protection to the concept of procedural
fairness.
Held - Dismissing the cross-appeal (Lord Hoffmann dissenting), that the right
to the protection of the law under section 13(a) of the Constitution and at
common law was in effect the same as an entitlement to due process of law;
that, although ratified but unincorporated treaties did not ordinarily create
rights for individuals enforceable in domestic courts, when the state acceded
to such treaties and allowed individuals to petition international human
rights bodies the protection of the law conferred by section 13 entitled a
petitioner to complete that procedure and to obtain the reports of such
bodies for consideration by the JPC before determination of the application
for mercy, and to a stay of execution until those reports had been received
and considered; that where a petition had been lodged with such a body
execution of a sentence of death consequent upon a decision of the JPC
made without consideration of that body's report would therefore be
unlawful; and that, since it was reasonable to allow 18 months for
applications to international human rights bodies, the lesser time limits
imposed by the Governor General in the instructions contravened the rules of
natural justice and were unlawful
Facts
The applicants were charged with murder and spent a number of years in
prison after being sentenced to death. Held - Allowing the appeals in part
(Lord Goff of Chieveley and Lord Hobhouse of Woodborough dissenting), that
due process of law in section 4(a) of the Constitution incorporated the
concept of procedural fairness not only in the trial but also in the appellate
process; that all litigants, including condemned men, had the general
common law right, affirmed by section 4(a), not to have the result of any
pending appellate or other legal process rendered nugatory by executive
action before completion; that, although the terms of the American
Convention on Human Rights had not been incorporated into domestic
legislation, by ratifying a treaty which provided for individual access to the
commission the government had made that process for the time being part
of the domestic criminal justice system so that the due process provision in
section 4(a) applied; that even if the government were entitled to curtail
such rights of access or to prescribe conditions for their exercise for the
future, section 4(a) prevented the government from doing so retrospectively
so as to affect existing applications, and, although the applicants' petitions
had been lodged after publication of the instructions, the invalidity of the
instructions prevented the government from relying on them to justify
carrying out the death sentences passed on the applicants before petitions
were determined, and to do so would infringe the right to due process
guaranteed by section 4(a); and that, accordingly, their executions would be
stayed until the current petitions to the commission had been determined
and the rulings of the commission and the Inter-American Court of Human
Rights had been considered by the relevant authorities of Trinidad and
Tobago.
Independent Judiciary:
This is an indispensable pre-requisite of a free society under the rule of law.
Caribbean constitutions contain provisions, which support the independence
of the judiciary including those relating to the appointment and removal of
judges, the security of their tenure and the scope of their jurisdiction.
Overruling precedent:
Law cannot rule us unless the law is fairly stable and certain. This means
that we must be able to feel secure that the law will not change arbitrarily
and without just cause. This brings into scrutiny the rules governing the
overruling of cases. But the interests of justice will always trump the
certainty of stable precedent.
The majority in the PC in Lewis v. AG had said that the need for legal
certainty, demands that they should be very reluctant to depart from recent,
fully reasoned decisions unless there are strong grounds to do so. But no
less should they be prepared to do so if they are satisfied that the earlier
cases adopted a wrong approach. In such a case rigid adherence to the rule
of stare decisis is not justified. Under the concept of rule of law as certainty,
Lord Hoffman in Lewis v. AG said that if the HL or PC could overrule
precedent, it would undermine the rule of law. I entirely accept that the
Board is not, as a matter of law, bound by its previous decisions But the
power of final interpretation of a constitution must be handled with care. If
the Board feels able to depart from a previous decision simply because its
members on a given occasion have a "doctrinal disposition to come out
differently", the rule of law itself will be damaged and there will be no
stability in the administration of justice in the Caribbean. Lord Hoffman
said that there should be certain guidelines that should be followed when a
court decides to overrule a case.
Vagueness
The principle of legality requires that an offence against the criminal law
must be defined with sufficient clarity to enable a person to judge whether
his acts or omissions will fall within it and render him liable to prosecution.
Legislation, which is hopelessly vague, must be struck down as
Sabapathee v State
Following the arrest of the appellants co-defendant a search was executed
at the appellants house. A package was found which contained 35 sealed
plastic sachets containing heroin and 50 empty plastic bags. The appellant
was charged with various offences under the Dangerous Drugs Act 1986 in
respect of which it was alleged that, pursuant to section 38, it could be
reasonably inferred that he had been trafficking drugs when he committed
the offences. The co-defendant pleaded guilty to two offences of importing
drugs into Mauritius. The appellant was tried by a judge without a jury and
did not give evidence in his own defence. He was convicted of knowingly
having in his possession 395 grams of heroin and wilfully offering to buy
heroin. Without giving the appellant any further opportunity to give any
evidence the judge went on to make a finding that the appellant had been
engaged in trafficking drugs when he committed the offences.
Per Lord Hope of Craighead The essence of the complaint is that the
statute has failed to define with sufficient clarity the transactions that fall
within, and those that fall outside, the ordinary meaning of the expression
[trafficking] which the section has used to describe the nature of the activity.
The principle of legality requires that an offence against the criminal law
must be defined with sufficient clarity to enable a person to judge whether
his acts or omissions will fall within it and render him liable to prosecution on
the ground that they are criminalThe fact that a law is expressed in broad
terms does not mean that it must be held to have failed to reach the
required standardthe Court of Appeal put the matter correctly in its
judgement in the present case when it said: As we have already adverted to,
the term trafficking cannot be defined with any degree of precision. The
multifarious forms which trafficking can take can be measured only by the
degree of human ingenuity, which, as yet, is unfathomable. No exhaustive
list of instances of trafficking can be enumerated or defined, so the legislator
has left it to the good sense of the courts to decide what amounts to
trafficking on a given set of facts.
Where a law creating a criminal offence is vague the citizen will not be able
to know exactly what conduct is prohibited until the judge trying the case
interprets the law. The rule of law requires obedience to the law but this
necessarily implies that the law is clear.
Retroactivity
At the time you commit an act it must have been a criminal offence.
Barbados s. 18(4) states:
o Sometimes a law may vest public authorities with powers cast in broad
language such as if it appears to the Minister that so & so, or if the
Minister is satisfied that. If interpreted literally, expressions such as
these could be said to give public authorities to act on a whim or to
give vent to personal preferences or prejudices. If this were so, then
the law would be administered in an arbitrary fashion and would
depend upon the predilections of the particular public officer who
happens to be the repository of the power at the time. People would
never be certain as to exactly what are required of them or as to what
there entitlements might be.
o For this reason, wide discretionary powers have been held to be
reviewable by the courts, which require that such powers be exercised
in accordance with the intent and for the purposes of the law, which
vets the power in the public official.
Re Manpower Citizens Association per Crane J argued that the courts could
not interfere with the exercise of his discretion. However the court stated
that to accept such proposition would lead to serious inroad on the rule of
law in a democratic society. The rule of law in a democratic society
provides that a discretion is not to be exercised in a capricious and arbitrary
manner, but in a disciplined and responsible way.
Oliver Ashworth (Holdings) Ltd v Ballard (Kent) Ltd
R v Home Secretary, ex parte Venables
The right to be heard and the right to an unbiased judge are indispensable to
the rule of law. Law determined by a biased judge is not rule by law at all
but rule in accordance with the judges prejudices. And law determined
without hearing the other side is law, which represents only half of the
picture and so is incomplete and is based on an unfair foundation.
Jaroo v AG of TT
Shah & Lasalle v AG
Lewis v AG of Jamaica
Gairy v AG
Johnson v Gore Wood & co (a firm)
R v lord Chancellor, ex parte Lightfoot
Remedies
Kuddus v Chief Constable [2001] 2 WLR 1789:
The plaintiff reported to the police that property had been stolen from his
flat. A police constable assured him that the matter would be investigated,
but subsequently the constable forged the plaintiffs signature on a
statement purporting to be a withdrawal by the plaintiff of his complaint.
The investigation accordingly ceased. The plaintiff brought an action against
the defendant chief officer of police on the ground of his vicarious liability for
the constables misfeasance in public office. He claimed damages,
aggravated damages and exemplary damages.
The defendant, who
admitted the forgery of the constable and that it amounted to a misfeasance
of public office, applied for the plaintiffs claim of exemplary damages to be
struck out on the grounds that exemplary damages were not recoverable for
the tort of misfeasance in public office.
Held, allowing the appeal, Lord Hutton said In my opinion the power to
award exemplary damages in such cases serves to uphold the rule of law
because it makes it clear that the courts will not tolerate such conduct. It
serves to deter such actions in future as such awards will bring home to
officers in command of individual units that discipline must be maintained at
all times.
The defendant, a citizen of New Zealand who was alleged to have committed
criminal offences in England, was traced to South Africa by the English police
and forcibly returned to England. There was no extradition treaty between
the two countries, and although special arrangements could be made in a
particular case under section 15 of the Extradition Act 1989 no such
proceedings were taken. The defendant claimed he had been kidnapped
from the Republic of South Africa as a result of collusion between the South
African and British police and returned to England, where he was arrested
and brought before a magistrates court to be committed to the Crown Court
for trial. The defendant sought an adjournment to enable him to challenge
the courts jurisdiction. The application was refused and he was committed
for trial. He sought judicial review of the magistrates decision.
The Divisional Court of the Queens Bench, refusing the application, held that
the English court had no power to inquire into the circumstances under which
a person appearing before it had been brought within the jurisdiction. On
appeal by the defendant, it was held per Lord Bridge of Harwich There is,
I think, no principle more basic to any proper system of law than the
maintenance of the rule of law itself. When it is shown that the law
enforcement agency responsible for bringing a prosecution has only been
enabled to do so by participating in violations of international law and of the
laws of another state in order to secure the presence of the accused within
the territorial jurisdiction of the court, I think that the respect for the rule of
law demands that the court take cognisance of that circumstanceIf a
resident in another country is properly extradited here, the time when the
prosecution commences is the time when the authorities here set the
extradition process in motion. By parity of reasoning, if the authorities,
instead of proceeding by way of extradition, having resorted to abduction
that is the effective commencement of the prosecution process and is the
illegal foundation on which it rests. Per Lord Lowry the court, in order
to protect its own process from being degraded and misused, must have the
power to stay proceedings which have come before it and have only been
made possible by acts which offend the courts conscience as being contrary
to the rule of law.
Those acts by providing a morally unacceptable
foundation for the exercise of jurisdiction over the suspect taint the proposed
trial and, if tolerated, will mean that the courts process has been abused.
Rule of Law as the supremacy of law over government
Executive
Hochoy v. NUGE
In exercise of the powers conferred on him by s 2 of the Commission of
Inquiry Ordinance Cap 7, No 2, the GG of T&T appointed a commission of
inquiry to inquire into certain matters set forth in the Gazette Extraordinary
published on 26 September 1963. An action was brought by the claimants
against the defendant; the appointment was ultra vires and of no effect. The
GG argued that:
1. That as the Queens representative in this country he was
immune from suit, and that the court had no jurisdiction over him
and
2. That the court had no jurisdiction to make the declarations
sought for the reason that O 26, r 5 of RSC was not binding on
the Crown.
It was held that the courts of the country are the Queens Courts and not that
of her representatives and as her immunity from suits in her courts was
essentially personal, the appellants as her representative could lay no claim
to such privilege. When questions arise as to the quality and validity of an
act done by the appellant, on the assumption that it is within his powers as
GG, it is within the province of the courts to determine its true
character and his competence to do it. The appellant as the person
designated by the Ordinance to exercise the statutory power to appoint a
commission of inquiry was a proper defendant to answer the challenge that
the appointment made by him was ultra vires and accordingly null and void.
Wooding CJ said that the Sovereigns immunity is essentially personal
there ought to be no doubt. The courts are the Queens; they are not the
courts of her representative, which the GG is here.
C O Williams v. Blackman
The courts reviewed a decision of cabinet. The Cabinet was acting under a
specific statutory provision; thus they could review their actions under that
provision. The executive is not immune from review.
The applicant submitted tender which was lower than that of the only other
tenderer. The special tenders committee recommended acceptance of the
applicants tender. The matter was considered by cabinet and it decided
under rule 148 of the Rules of 1971 to award the contract to the other
tenderer, recommended by the Minister of Transport and Works, who was a
member of the cabinet. The applicant applied for judicial review. On appeal
to the Privy Council it was held that 1. Allowing the appeal against the AG, that in deciding to accept the
tender of the other tenderer the cabinet had not been exercising its
prerogative power but the specific statutory function conferred on it by
rule 148 of the Rules of 1971; that the exercise of that function was an
administrative act by the cabinet within s 2 of the Administrative
Justice Act since even if not collectively the act of a minister it was the
act of an other authority of the Government of Barbados for the
purposes of that section and was therefore subject to judicial review to
the same extent and on the same grounds as it would have been had it
been conferred on a minister instead of on the cabinet.
Judiciary
Maharaj v. AG of TT the courts reviewed the actions of a judge (Remember
Fundamental Right Lecture).
Rees v Crane:
The respondent was a judge of the High Court of TT and held office subject to
the fundamental right to the protection of the law recognized by s4 (b) of the
Constitution of the Republic of TT and he could only be removed from office
for inability to perform whether from infirmity of mind or body or any other
cause or for misbehaviour in accordance with the constitution.
After
receiving complaints about the respondent the CJ of TT decided not to
include him in the roster of judges who were to sit in court for the following
term. The Chief Justice then instigated proceedings for the respondent to be
removed from office without the respondent being aware of such
proceedings. The respondent applied for judicial review.
The Court of Appeal of TT allowed the appeal by a majority and quashed the
Chief Justices decision to exclude the respondent from the roster. The Privy
Council ruled that:
1. Although the CJ of TT as head of judicial administration there had
power to organise the procedures and sittings of the courts, including
arranging that for a temporary period a particular judge did not sit in a
court, a judge may only be suspended or removed from office in
accordance with the procedure prescribed by s137; that the decision of
the CJ to exclude the defendant from the roster, with no indication as
to when he would sit in court again constituted an indefinite
suspension which he had no power to impose and which could not be
corrected retrospectively by the order of suspension made by the
President under s.137(4).
2. The commission had not treated the respondent fairly in failing to
inform him at that stage of the allegations made against him or to give
him a chance to reply to them in such a way as was appropriate, albeit
not necessarily by an oral hearing; and that accordingly the
commission had acted in breach of the principles of natural justice.
Legislature
Hinds v R [1977] AC 195
Collymore v AG (1967) 12 WIR 5:
Ouster Clauses
There is an argument that they are inconsistent with the rule of law.
Re Alva Bain (unreported) HC, T&T (no 3260 of 1987) AKF 125:
The case law demonstrates that no matter the high office held by anyone
they are bound to comply with the law. However, there are some instances
where the law itself immunizes public authorities from supervision by the
courts. When courts abide by ouster clauses, is this an exception to the rule
of law or an application of the doctrine?
On appeal it was submitted inter alia, that the trial of the plea of
condonation was unfair and that a substantial miscarriage of justice had
occurred. Held - Fraser JA said in military affairs the law, as it now
stands, gives a commanding officer power to condone military offences,
including mutiny, and such condonation is a bar to trial by a court-martial.
The hearing of the plea of condonation was not a fair hearing. The principles
of natural justice were cast aside for no apparent reason; and the Act does
not provide the alternative of a re-trial. Where there is a substantial
miscarriage of justice the Act demand that the conviction be quashedthe
Constitution of this country recognises that men and institutions remain free
only when freedom is founded upon respect for moral and spiritual values
and for the rule of law. As a judge of this court, I am in duty bound to uphold
the rule of law at all times. Appeal allowed.
The Court refused both motions; the Court of Appeal upheld this. The Privy
Council held
1. The applicants had established that they were the beneficiaries of a
valid pardon which would render their detention and imprisonment on
charges relating to offences covered thereby unlawful, and it was for the
Commissioner of Prisons and the AG to justify their detention; that,
accordingly, the applicants were entitled to a writ of habeas corpus as of
right so that the lawfulness of their imprisonment could be immediately
determined, and at that hearing the court would have jurisdiction to
inquire into the validity of the pardon even though, of the applicants were
not released, they would be entitled under s32 of the Criminal Procedure
Act to assert the pardon again as a special plea in bar to the indictment
when they were arraigned; and that therefore all the applicants would be
granted leave to issue a writ of habeas corpus. Lord Ackner said their
Lordships have no hesitation in saying that it is in the overall interest of
justice that there should be the earliest possible decision as to the validity
of the pardon, if it is to be challenged.
If the pardon remains
unchallenged or is held to be valid, the unlawful imprisonment of the
applicants will then ceaseA prima facie case having been established
that the applicants were unlawfully detained, it is clearly for the
respondents to make a return justifying the detention.
Convicted Killers
Catholic Commission for Justice and Peace in Zimbabwe v AG (1993) 2 LRC 279, 314
In this case, which predated Pratt and Morgan, the Zimbabwean Supreme
Court held that a long delayed execution could violate the right not to be
subjected to cruel and unusual treatment or punishment. Per Gubbay CJ
Because retribution has no place in the scheme of civilised jurisprudence,
one cannot turn a deaf ear to the plea made for the enforcement of
constitutional rights. Humaneness and dignity of the individual are the
hallmarks of civilised laws. Justice must be done dispassionately and in
accordance with constitutional mandates. The question is not whether this
court condones the evils committed by the four condemned prisoners, for
certainly it does not. It is whether the acute mental suffering and brooding
horror of being hanged which has haunted them in their condemned cells
over the lapse of time since the passing of the sentence of death, is
consistent with the guarantee against inhuman or degrading punishment or
treatment.
One of the more challenging but enduring aspects of the rule of law
is the insistence that even those who flout the law or seek to
undermine or overthrow the very foundations of the legal system
are nevertheless entitled to the laws protection.